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Writ of Amparo: a Remedy to Protect Constitutional Rights in Argentina

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Writ of Amparo: a Remedy to Protect Constitutional Rights in Argentina THE WRIT OF AMPARO: A REMEDY TO PROTECT CONSTITUTIONAL RIGHTS IN ARGENTINA The Supreme Court of Argentina in recent years has been engaged in the development of a new procedural remedy to provide effective protec- tion for constitutional rights. The writ of amparo (the Spanish word for protection) is a constitutional suit of a summary nature roughly compa- rable to the Anglo-American writs of injunction and mandamus. The development is noteworthy in two respects. First, it shows the Court at- tempting to protect civil liberties in a country suffering from chronic politi- cal instability and increasing military dominance. Secondly, it shows the judiciary, in a civil law country, making law and ignoring codifica- tion by the legislature. In Latin America, constitutional limitations on governmental power have generally not been effectively utilized to provide adequate protection for the individual. Those constitutional provisions designed to protect the individual from arbitrary infringements of basic human rights depend upon the existence of an independent body which constitutes a check on governmental and economic powers. The growth of an independent judiciary has been adversely affected by the Latin American tradition of authoritarianism. Evidence of this is found in Argentina where the gov- ernment is strongly centralized. This centralization is marked by a great concentration of power in the executive branch. The situation might be characterized by the common, and somewhat simplistic, North American concept of Latin America as being composed solely of dictatorial and mili- taristic regimes. Protection of constitutional rights is not, of course, a problem exclu- sive to Argentina or other Latin American countries. In the United States, where the executive power is more limited and the Supreme Court is often viewed as the protector of civil liberties, the court has been an unreliable defender of the individual, deferring often to the other branches of the government or to public opinion in general.' Problems generally associated wih Latin America are becoming more relevant in the United States as concern spreads over the stability and independence of the courts, repressive governmental measures, the concentration of economic wealth abusively used against the masses by the few in control, and the increasing influence of the military. These factors and the desire for change have led to an increasingly polarized society marked by extremism and faction- alism not unlike that which confronts the Argentine judiciary and the Argentine people. The judicially created remedy of arnparo marks an important step in what might be termed an emerging constitutionalism in Argentina. The 1 L VY, JUDIcIL RIvIEW AND THE SUPRENE COURT, SELECTED ESSAYS 19-20 (1967). OHIO STATE LAW JOURNAL [Vol. 31 success of amparo, along with constitutional government, however is threatened by continued political instability. The study here shows the Supreme Court attempting to carve out a meaningful role for itself in Argentine society by providing effective protection for civil liberties. I. EXTRAORDINARY REMEDIES TO PROTECT CONSTITUTIONAL RIGHTS The protection of individual rights demands a judicial system which affords effective remedies. Damage to fundamental human rights often cannot be adequately restored by submission of a complaint to the ordi- nary legal processes, which are typically dilatory. Extraordinary remedies, providing rapid judicial relief, are needed.2 The method by which an individual could obtain protection for the exercise of constitutional rights in Argentina, prior to the creation of the writ of amparo in 1957, was generally limited to the ordinary judicial processes. The ordinary procedure in the Argentine court system allows a party to raise a constitional question at trial similar to United States prac- tice. Appeal to the Supreme Court is provided by way of the recurso extraordinario which is comparable to the common law writ of error.' The recurso extraordinario, based on Section 25 of the Judiciary Act of 1789 of the United States Congress,4 gives the Supreme Court appellate jurisdiction over the final decisions of provincial courts and lower federal courts involving federal and constitutional questions. The Supreme Court, and all other courts in the country, have the power of judicial review. While the power is not expressly granted in the Constitution, both court decisions and some statutes recognize it.5 Yet, this power of review is in- effective at times. Often when an individual is seeking relief from an act that curbs the exercise of constitutional rights, the ordinary legal proc- esses are so time-consuming that irreparable harm results.6 Some Latin American countries solved this problem by expanding habeas corpus to protect constitutional rights other than personal liberty.7 A notable example is the Brazilian mandado de seguranca (writ of se- curity). Early in its history, Brazil adopted the English common law 2 Samuel Kot, SRL, [1958-IV] Jurisprudencia Argentina [J.A.] 216, 229, 92 Revista Jurldica Argentina-La Ley [La Ley] 626, 636 (1958); Dombrowski v. Pfister, 380 U.S. 479, 491-92 (1965). 3 R. BIELSA, LA PRoTEccioN CoNsTITUTcsONAL Y EL REcURSO ExTRAoRDINARIo 181 n.3 (2d ed. 1958). 4 Id. at 57; S. AMADEO, ARGENTINE CONSTITUTIONAL LAW 70 (1943) [hereinafter cited as AmADEol. 5 AMADEO 73-75. 6 Cases cited note 2 supra; Brewer, Dombrowski v. Pfister: Federal Injunctions Against State Prosecutions In Civil Rights Cases-A New Trend In Federa-State Relations, 34 FoRD. L. REV. 71, 103 (1965-66). 7 AmADEO 169. 1970] NOTES writ of habeas corpus.8 The writ, at common law, granted summary relief against illegal restraint by superseding the ordinary legal procedure. How- ever, it was an inappropriate remedy in cases involving rights other than those of personal liberty. In Brazil, the writ was first expanded to in- clude not only physical deprivations of liberty but also threatened depriva- tions. It was later interpreted as a constitutional guarantee for the pro- tection of all rights guaranteed therein. In 1926 the Constitution was amended to restrict the use of habeas corpus to its original, limited scope. In 1934, however, a new constitution created the mandado de seguranca. The basic idea of the mandado de seguranca is to provide protection for rights granted by the Constitution or other laws which are abused by the public authority. The objective is to cover all rights left unprotected by the restrictive and narrow writ of habeas corpus.10 The Mexican juicio de amparo is also a constitutional remedy, sum- mary in character, to protect individual rights. The historical root of the Mexican amparo is unclear, but it appears to have been based at least in part on the English habeas corpus proceeding. 1 Early in the nineteenth century, advocates of constitutional reform in Mexico were interested in developing a device to protect against unconstitutional action by the government. The amparo proceeding was established in the Mexican Con- stitution of 1857.12 While it differs in some respects from the Argentine amparo, the fundamental idea of constitutional protection through sum- mary relief is found in both.13 The Argentine courts were urged many times to adopt an expansive theory of habeas corpus such as Mexico and Brazil had done.'4 The Supreme Court continually refused to do so. An example is found in the 8 lider, Habeas Corpus Disembodied: The Latin American Experience in XXTH CENTURY COMPARATIVE AND CoNFLIcTs LAw 463, 465-69 (Nadelmann, Von Mehren, and Hazard ed. 1961). 0 2 T. SPELLING, A TREATISE ON EXTRAORDINARY RELIEF IN EQUITY" AND AT LAw § 1152 (1893). The common law, however, provided other remedies of a summary nature. The principle that "no wrong shall exist without a remedy" led to the development of extraordinary remedies which were available when the common law writs were unable to prevent injustice. axamples are found in the writs of injunction and mandamus. Both were based on the principle that a party who could show the existence of a clear legal right which was being injured or threatened by another party's action or inaction could seek a judicial order against that party when no other adequate remedy was available. See 1 SPELLING §§ 1-35 and 2 SPELLING § 1368. While these are not constitutional remedies in origin, they can be used to protect against invasions of constitutional rights. 10 Eder, Judicial Review in Latin America, 21 OHIo ST. L.J. 570, 580-584 (1960). ,lid. at 599. 12 K KARST, LATIN AMERICAN LEGAL INSTITUTIONS: PROBLEMS FOR COMPARATIVE STUDY 619-20 (Latin American Studies Vol. 5, 1966). 1 3 See G. BiDART CAmpOS, REGIMEN LEGAL Y JURISPRUDENCIAL DEL AMPARO (1968) who, in his extensive study of the Argentine amparo, includes many references to the similarities and differences between Argentine and Mexican practice; see KARSY, supra note 12, at 614-646, 651-675 for case studies of the Mexican and Argentine amparo. 14 AMiADEO 169; BIDART CAMPOS, supra note 13, at 43-56. OHIO STATE LAW JOURNAL [Vol. 31 case of Ex Parte Bertotto."5 The postal authorities refused to send a pub- lisher's newspaper through the mail because it contained incendiary items calling for revolution. The publisher sought to compel the authorities to mail the newspaper through the use of habeas corpus on the ground that their action inhibited free speech. The Court, reasoning that habeas corpus did not extend beyond the protection of personal bodily freedom, refused the plaintiff's request. II. THE DEVELOPMENT OF AmPARO BY THE ARGENTINE SUPREME COURT, 1957-1966 The Supreme Court of Argentina has from its inception exercised a fairly high degree of independence. As early as 1887, the court estab- lished the power of judicial review by declaring an act of the national legislature unconstitutional. Through the years the court has become a prominent and important Argentine institution. 6 The Court, however, has at times been subject to the control of the executive.
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